IN THE COURT OF APPEALS OF IOWA

No. 18-1500

Filed March 18, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TIMOTHY D. SMITH,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Cass County, Susan Christensen, 

Judge.

Timothy Smith appeals his convictions for two counts of second-degree 

sexual abuse. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and May and Greer, JJ.
2

MAY, Judge.

Timothy Smith appeals his convictions of two counts of sexual abuse in the 

second degree. He contends the district court abused its discretion by excluding 

evidence under Iowa Rule of Evidence 5.412(b)(1)(c). He also claims he received 

ineffective assistance of counsel. We affirm.

I. Facts and Prior Proceedings

H.R. is a child. In 2007, Smith had illicit contact with H.R. According to 

H.R., when she was in first or second grade, Smith touched her chest, mouth, and 

vaginal area with his penis. Smith’s penis either penetrated her vagina or anus. 

When the contact ended, H.R. “had something sticky all over [her]” that came from 

Smith’s penis. On another occasion, Smith inserted his penis into H.R.’s mouth. 

At the time, H.R. did not disclose the abuse because she was afraid Smith would 

hurt her.

Smith moved to another town but continued to have contact with H.R. When 

H.R. was in either third or fourth grade, Smith penetrated either her vagina or anus.

This caused her to feel a sharp pain. 

Eventually, H.R. moved away from Smith. She disclosed the abuse to her 

mother and then a teacher. Police came to H.R.’s school to meet with her. After

additional investigation, Smith was charged with multiple counts of sexual abuse 

in the second degree. 

Prior to trial, Smith filed a motion to offer evidence under Iowa Rule of 

Evidence 5.412. He asked for leave to introduce evidence that H.R. also accused 

his son of sexual abuse and there were criminal proceedings pending against his 
3

son. He reasoned this would go to H.R.’s credibility and whether she confused her 

alleged abusers. The court denied his motion, and the matter proceeded to trial.

During voir dire, some potential jurors expressed opinions that defendants 

should testify or provide evidence of their innocence. Defense counsel moved to 

strike for cause four potential jurors expressing these opinions. The court denied 

counsel’s motions. The State and defense used two preemptory strikes each to 

eliminate the four potential jurors.

The jury found Smith guilty as charged. On appeal, Smith argues he should

have been allowed to present evidence H.R. confused him with his son, whom she 

had also accused of abusing her. He also claims trial counsel was ineffective in 

voir dire.

II. Scope and Standards of Review

“The district court’s rulings on the admissibility of evidence, including 

admissibility under rule 5.412, are reviewed for abuse of discretion. To the extent 

[Smith] asserts constitutional claims, our review is de novo.” State v. Hartman, No. 

14-0727, 2015 WL 4642276, at *4 (Iowa Ct. App. Aug. 5, 2015) (citations omitted). 

“Ineffective-assistance-of-counsel claims are based in the Sixth 

Amendment of the United States Constitution and article I, section 10 of the Iowa 

Constitution. We normally preserve ineffective-assistance-of-counsel claims for 

postconviction-relief proceedings. But, ‘we review ineffective-assistance-ofcounsel claims de novo.’” State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019) 

(citations omitted).
4

III. Discussion

Smith argues the district court should have permitted him to introduce 

evidence that H.R. also accused his son of sexual abuse and his son was also 

criminally charged. He argues “evidence of other allegations of abuse could have 

been used to show that H.R. was not necessarily lying, but had misremembered 

or had confused memories.” Smith contends this was his defense, and he was 

prevented from presenting it. And he laments that, during his testimony, “the 

prosecutor [asked] why H.R. would make the allegations, and he could not answer 

that question because of the court’s ruling.” In short, Smith wanted to admit 

someone sexually abused H.R.—but then argue H.R. couldn’t accurately identify 

her abuser due to her young age. 

Evidence of past sexual abuse is governed by Iowa Rule of Evidence 5.412. 

State v. Jones, 490 N.W.2d 787, 790 (Iowa 1992), overruled on other grounds by 

State v. Plain, 898 N.W.2d 801, 826 (Iowa 2017). It generally “prohibits 

introduction of reputation or opinion evidence of a complaining witness’s other 

sexual behavior and substantially limits the admission of evidence of specific 

instances of a complaining witness’s other sexual behavior.” State v. Trane, 934 

N.W.2d 447, 456 (Iowa 2019) (footnote omitted). Its purpose is to “protect the 

victim’s privacy, encourage the reporting and prosecution of sex offenses, and 

prevent the parties from delving into distractive, irrelevant matters.” State v. 

Alberts, 722 N.W.2d 402, 409 (Iowa 2006). 

Rule 5.412(b)(1) provides limited exceptions. At issue here is rule 

5.412(b)(1)(c), which permits the admission of “[e]vidence whose exclusion would 

violate the defendant’s constitutional rights.” According to Smith, his constitutional 
5

rights were violated because he was denied his right to present a defense. See, 

e.g., State v. Clark, 814 N.W.2d 551, 561 (Iowa 2012). 

“However, even relevant evidence is not constitutionally required to be 

admitted if the prejudicial effect outweighs the probative value.” Thompson v. 

State, 492 N.W.2d 410, 414 (Iowa 1992). Even when evidence of a victim’s past 

sexual conduct fits an exception under rule 5.412(b)(1), “the evidence still would 

not be admissible if its probative value did not outweigh the danger of substantial 

prejudice, confusion of the issues, and misleading the jury.” See id. at 415.

The present case is comparable to State v. Walker, 935 N.W.2d 874, 877 

(Iowa 2019). In Walker, the defendant wanted to introduce evidence the 

complaining witness was actually abused by her brother instead of him. 935 

N.W.2d at 877. The district court considered the proffered evidence unduly 

prejudicial and excluded under rule 5.412. Id. at 878. The supreme court affirmed 

on multiple bases. See id. at 877–78. Among those, the court determined 

evidence of past alleged sexual abuse by the complaining witness’s sibling “was, 

at best, only marginally relevant” and “would have merely confused the issues, 

misled the jury, and created multiple trials within the trial” and properly excluded 

by rule 5.403. Id. at 878. 

For similar reasons, we find that Smith’s proposed evidence would have 

confused and misled the jury. See State v. Edouard, 854 N.W.2d 421, 449 (Iowa 

2014) (noting the balancing test for admission of evidence under 5.412(b) is

“identical to that contained in rule 5.403”), overruled on other grounds by Alcala v. 

Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). It also would have required the 

jury to first determine if Smith’s son had sexually abused H.R.—creating a trial 
6

within a trial—before considering if H.R. accidentally attributed sexual abuse 

committed by Smith’s son to Smith.

Moreover, Smith’s proposed evidence was also of minimal probative value. 

As the State correctly points out, Smith’s offer of proof did not include proposed 

expert testimony regarding children’s tendency to confuse known individuals with 

each other. Put differently, he provided nothing to substantiate his claim that 

young children have a tendency to confuse the identities of their known abusers.

In short, even assuming the absence of Smith’s proposed evidence had an

impact on his defense, it was properly excluded. See Thompson, 492 N.W.2d at 

414–15.

Next Smith argues his trial counsel was ineffective for failing to request 

additional preemptory strikes following the court’s refusal to strike four jurors for 

cause. See State v. Jonas, 904 N.W.2d 566, 583 (Iowa 2017).1 

To succeed on an ineffective-assistance claim, Smith must prove by a 

preponderance of the evidence that counsel failed to perform an essential duty 

and Strickland prejudice2resulted. State v. Walker, 935 N.W.2d 874, 881 (Iowa 

2019). The first prong of the ineffective-assistance test requires Smith show 

 

1 We recognize Iowa Code section 814.7 was recently amended to provide in 

pertinent part: “An ineffective assistance of counsel claim in a criminal case shall 

be determined by filing an application for postconviction relief” and “shall not be 

decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 

140, § 31. In State v. Macke, however, our supreme court held the amendment 

“appl[ies] only prospectively and do[es] not apply to cases pending on July 1, 

2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s 

holding. We conclude, therefore, the amendment “do[es] not apply” to this case, 

which was pending on July 1, 2019. Id.

2 Strickland v. Washington, 466 U.S. 668, 687 (1984), provided that prejudice 

occurs when “counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.”
7

“counsel’s representation fell below an objective standard of reasonableness.” 

State v. Ortiz, 905 N.W.2d 174, 183 (Iowa 2017) (citation omitted). We consider 

whether counsel acted “outside the wide range of professionally competent 

assistance.” Id. at 184 (citation omitted). We understand counsel may have good 

reasons for proceeding through trial in a specific manner. State v. Coleman, 907 

N.W.2d 124, 142 (Iowa 2018). Those reasons are not always apparent on direct 

appeal. See id. So it is often best to provide counsel an opportunity to explain. 

See id. We follow this approach here. We preserve Smith’s claim for a future 

postconviction-relief action in which counsel can respond to Smith’s claim, and in

which Smith can attempt to show Strickland prejudice. See id.3

IV. Conclusion

The district court did not err in excluding evidence that Smith’s son also 

sexually abused H.R. We preserve Smith’s ineffective-assistance claim for future 

postconviction-relief proceedings.

AFFIRMED.

 

3

In his reply brief, Smith makes a passing claim that “plain error review should be 

applied” in his section heading. Smith did not make this claim in his original brief, 

so we cannot consider it. See State v. Olsen, 794 N.W.2d 285, 287 n.1 (Iowa 

2011). Even if we could, we are powerless to adopt the plain-error doctrine 

because our supreme court had repeatedly declined to adopt it. See, e.g., State 

v. Martin, 877 N.W.2d 859, 866 (Iowa 2016) (noting the supreme court has 

“repeatedly declined ‘to abandon our preservation of error rules in favor of a 

discretionary plain error rule’” (citation omitted)).